Failure to observe instructions-selection set aside

In nutshell, 83 out of 91 candidates committed the following types of violations, which is not disputed by the TNPSC.

"1.Sketch pen used candidates - 3

2.Pencil used candidates - 66

3.Two colours used candidates - 21

4.Irrelevant marking used candidates - 5

5.Writing Name / Register No. - 1

6.Wrong question no. written candidates - 55

7.Perfect candidates - 8

9.First page of main answer book left blank - 21 "

14.The learned single Judge held that non-adoption of scaling technique for evaluation of subjects where less than five candidates appeared would not affect the selection. The learned single Judge also held that violation of instruction and Memorandum of admission would not result in the invalidation of answer scripts. In the result, the learned single Judge rejected the writ petitions leading to the filing of the present writ appeals.

15.The issues that have to be decided in both the writ appeals are:

(i)whether the non-adoption of the scaling technique for evaluation of answer scripts in respect of subjects where less than 5 candidates appeared would result in setting aside of the entire selection.

(ii)whether the violations of instructions and the memorandum of admission committed by the selected candidates could invalidate their selection to Group-I Services for the year 2000-2001; and

16.According to the learned senior counsel for the appellants, the learned single Judge ought to have set aside the selection, since the TNPSC failed to adopt the scaling technique uniformly for evaluation of all answer scripts relating to optional subjects. According to them, as per clause 10(iv) of the notification, the scaling technique for evaluation of all answer scripts should be adopted uniformly to all the subjects. According to the learned senior counsel for the appellants, the faulty adoption of this crucial technique in the selection procedure has distarded the whole ranking system. According to him, the glaring violation of the procedure of selection under clause 10(iv) of the notification is that 25 out of 91 candidates were selected without adopting this technique. But however, the TNPSC adopted the scaling technique for evaluation of answer scripts in respect of subjects where there were more than five candidates appeared. To explain, in respect of subjects where less than five candidates appeared, the scaling technique was not adopted.

17.On the other hand, the learned senior counsel for the respondent TNPSC submitted that since the expert opined that if the scaling technique is adopted for the subjects written by the candidates five or less than five in number, result will be negative / counter productive. Therefore, based on the expert's opinion, the scaling technique was only adopted for the subjects where more than five candidates appeared. It was also argued that the scaling technique was applied to the appellants and they were beneficiaries and that the candidates who appeared in the subjects, where less than five persons appeared, did not choose to question the same. The learned senior counsel also took us through the elaborate discussion of the learned single Judge on the adoption of scaling technique for evaluation of answer scripts. The learned counsel for respondent No.50 sought to sustain the order of the learned single Judge and supported the submissions of the learned senior counsel for the TNPSC.

18.We have gone through the reasoning given by the learned single Judge. We are in entire agreement with the learned single Judge in holding that there is no infirmity in adopting the scaling technique for evaluation of answer scripts in respect of subjects where more than five candidates appeared. The learned single Judge also found that while the appellant in W.A.No.1287 of 2009 secured 951.50 out of 1800 marks without application of scaling technique, he secured 952.27 marks on the adoption of scaling technique. Likewise, the appellant in W.A.No.1063 of 2009 secured 1021 out of 1800 marks without application of scaling technique and secured 1045.23 marks on the adoption of scaling technique. The appellants were not able to demonstrate as to how the non-adoption of scaling technique for evaluation of answer scripts in respect of subjects where less than five candidates appeared would put them in a disadvantageous position, particularly when the TNPSC stated that the raw marks obtained by them would be of advantageous to those candidates and not the scaling technique. Furthermore, as rightly pointed out by the learned senior counsel for the TNPSC, none of the candidates whose answer scripts were not evaluated based on scaling technique complained of prejudice. For the aforesaid reasons, we confirm the findings of the learned single Judge that the non-adoption of scaling technique for evaluation of answer scripts in respect of subjects where less than five candidates appeared would not cause any prejudice. Issue No.1 is answered accordingly.

19.While interpreting Note 5 of the Memorandum of admission, the learned single Judge, in para 23(h) of the judgment held that there is no prohibition in the instructions against using of ordinary pencils and using of colour pencils alone was prohibited. In view of the importance of the matter, Note-5 of Memorandum of admission is once again reproduced hereunder:

"5.The candidates should not use colour pens, sketch pens, pencils, except those permitted in the instructions etc., to candidates for any purpose including drawing, underlining and highlighting. They should not write their Register number anywhere (including additional answer books) except in the place provided at the top of the front page of the main answer book."

20.In para 23(h) of the judgment the learned single Judge read pencils as "colour pencils" by adding "colour" before "pencils". In our view, the same is quite unwarranted. When Note-5 of the Memorandum of admission makes it very clear that use of pencils was prohibited, the learned single Judge is not correct in holding use of colour pencils alone was prohibited. In our view, pencils mean both the ordinary pencils as well as colour pencils. In fact, the written arguments filed by TNPSC strengthen our view as TNPSC issued the following instructions in clause 16(i) of the instructions for the examinations that were conducted subsequently.

"16(i) Candidates should not use colour pens, sketch pens, colour pencils except those permitted in the "Instructions etc., to candidates for any purpose including drawing, underlining and highlighting. The answer books of the candidates who violate this instruction will be invalidated."

That is, the TNPSC added "colour" before "pencils" and prohibiting use of colour pencils alone in the subsequent examinations by way of the aforesaid instruction No.16(i).

21.As far as sketch pens are concerned, they are only in colours. As per Note-5 of the Memorandum of admission, the TNPSC prohibited use of pencils. Furthermore, the use of pencils was prohibited as it could be easily erased and corrections could be made. In any event, Note-5 of the Memorandum of admission is unambiguous and use of pencils is prohibited in the examination for Group I Services for the year 2000-2001. The intention and the aim that is sought to be achieved by prohibiting the use of pencil is to curtail candidates from indulging in malpractices. In fact, n clause 9 of the instructions it has been clearly mentioned that "candidates are permitted to use only fountain pen, steel pen and ball point pen using blue or black or blue black colour inks only." Therefore, we have no hesitation to hold that clauses 9 and 22 of the instructions that were extracted above read with Note-5 of the Memorandum of admission prohibit use of pencils.

22. To verify, we have directed the Tamil Nadu Public Service Commission to produce before us the answer sheets of the selected and non-selected candidates. Accordingly, they have produced before us the answer sheets. We have gone through the answer sheets, with reference to the second Advocate Commissioner's report. We are able to find many lacunae and malpractices adopted on the part of some of the selected candidates. As a tip of the iceberg we extract hereunder some of the lacunae observed by us:

i) J.Vijayarani (R.9 in W.A.No.1063 of 2009) (with Registered No.519920) has used religious symbols (om, Cross and crescent) in four papers in the first page of the main answer book.

ii) T.India (R.52 in W.A.No.1063 of 2009) (with Registration No.537915) used the 'Sum' symbol 'c' at top of several pages in Sociology Paper-II.

Iii) Chamundeeswari (R.78 in W.A.No.1063 of 2009) (with Registration No.502369), left the 7th page blank and had written a peculiar code 'mani' at the centre of the full blank page in the General Studies Paper-I.

23. The second Advocate Commissioner found that 66 out of 91 selected candidates used pencils, 3 out of 91 used colour pens and 21 out of 91 used two colours, and the same is not in dispute. When the candidates appeared for the higher service and disregarded the instructions, the same could be viewed very seriously. Though the learned single Judge referred to the report of the second Advocate Commissioner, he did not take into account the aforesaid violations pointed out by the second Advocate Commissioner and instead he proceeded simply on the premise that use of pencils was not prohibited.

24.The second Advocate Commissioner found that five of the selected candidates used religious symbols, such as, Cross, 'Om' and half moon etc. In this regard, the learned single Judge, in para 25 of the judgment held that the same could not be construed as irrelevant markings, inasmuch as the candidates put only the symbols of all religions. The aforesaid finding is found in the passage from para 25 of the judgment of the learned single Judge, which is extracted hereunder:

"25...... That apart, in respect of the violation about mentioning symbols viz., "cross, Ohm, half moon", I am of the view, by applying clause 14, the same cannot be construed to be irrelevant marking inasmuch as the candidate has put only the symbols of all religions and the same cannot said to be either irrelevant or impertinent marking which is likely to appeal the examiners......"

25.When second portion of clause 14 of the instructions makes it clear that any marks or irrelevant markings would invalidate the answer scripts, the learned single Judge was not correct in holding that the candidates put only the symbols of all the religions. We wonder as to in what manner, the marking of such religious symbols are relevant for the purpose. The intended examination is not meant to assess the religious beliefs of the candidates,but their knowledge on various subjects. These cheap techniques of sympathy gaining, adopted on the part of the candidates, in violation of the instructions. It is within every prudent man's knowledge that such irrelevant markings are strictly prohibited, since they could even be a guiding/identification factors for indulging in malpractices, lest it would be very difficult to identify, chase and trace the script of a particular candidate. In this regard, the second portion of clause 14 of the instructions is reproduced hereunder:

"Candidates should not write any irrelevant or impertinent remarks or any appeal or any marks or irrelevant matter including an appeal to the Examiner for higher marks. The answer book of the candidates who violate this instruction will be invalidated."

Hence, we are not able to agree with the findings recorded by the learned single Judge in this regard

26. Moreover, clause 14 of the instructions makes it clear that any marks or irrelevant matters could invalidate the answer scripts. Therefore, any marks or irrelevant matters written by the candidates, particularly, those who aspire to Group I posts, their answer scripts could be invalidated as per clause 14 of the instructions. Clause 22 of the instructions makes it very clear that violation of Memorandum of admission would lead to the rejection of the application and would lead to the invalidation of the answer scripts. Thus, the answer scripts of the candidates, who used sketch pens, pencils/colour pencils and colour pens had to be invalidated in view of Note-5 of Memorandum of admission read with clause 22 of the instructions. Therefore, the TNPSC ought to have invalidated the answer scripts of the candidates who used colour pens / sketch pens / pencils and also who wrote any marks or irrelevant markings in the answer scripts.

27.It is true that the other violations, namely, writing names and register numbers at improper places and also writing wrong question numbers, could not lead to invalidation of answer scripts in view of clause 11 and first portion of clause 14 and clause 23 of the instructions. As per those clauses, there would be only reduction in marks and the same would not lead to invalidation. But when there is violation of the Memorandum of admission, that would lead to invalidation of answer scripts, as per clause 22 of the instructions i.e. if the candidate used colour pens and/or sketch pens and/or pencils, his/her answer scripts would be invalidated. Likewise, when there is violation of the second portion of clause 14 of the instructions by writing any marks or any irrelevant matters, that would lead to invalidation of the concerned answer script. Hence, we are not in agreement with the findings recorded by the learned single Judge.

28.In fact, the learned single Judge, in para 35 of the judgment, held as follows:

"35.However, when it is stated by the respondent / TNPSC that at least 48 answer papers of the candidates who have violated the instructions have been invalidated on the basis that they have used extensively the colour pens, sketch pens and colour pencils in order to identify them to the examiners, especially in the circumstances that the learned advocate Commissioner has found that some marks which are not expected to be made in the answer papers have been made, the respondent/TNPSC should have taken care to prevent such use of signs even though the same may not be termed as irrelevant. Nevertheless, the TNPSC being the constitutional functionary, entrusted with the avowed object of selecting candidates for public service ought to be more careful because, it is those candidates selected by the TNPSC who are going to be the valuable officers in the governance of the state. Certainly, even a minor fault on the part of the TNPSC can have adverse repercussion on the governance of the State in future. The report of the learned advocate-Commissioner makes it clear that at least in few number of cases the answer papers were not in accordance with the instructions given and in spite of the same, the TNPSC has taken its own stand that such markings formed no basis for attracting the examiners."

However, the learned single Judge found that those violations could not invalidate the answer scripts of the selected candidates.

29.More importantly, the appellant in W.A.No.1063 of 2009 categorically pleaded in para 11 of the affidavit filed in support of the writ petition in W.P.No.30885 of 2004 that at least 40 candidates have used sketch pens and some of the candidates used sketch pens and pencils violating the norms fixed by the TNPSC. Hence, the entire selection was illegal and violative of the norms and rules fixed by the TNPSC. In this regard, para 11 of the affidavit filed in support of the writ petition in W.P.No.30885 of 2004 is extracted hereunder:

"11) I humbly submit that it was reliably learnt that some of the candidates have used sketch pens and pencils by violating the norms fixed by the TNPSC. Immediately representation was given by the candidates in time but, no action was taken. It was also learnt on enquiry that more than 20% of the selected candidates (ie) atleast 40 candidates have used Sketch Pens. Hence, the act of the respondent in not taking action against the candidates who have used Sketch Pen and Pencils is nothing but allowing the non-meritorious candidates to be selected. Hence, the entire selection process is illegal and violative of the norms and rules fixed by TNPSC."

30. The TNPSC filed a counter affidavit to the writ petition in W.P.No.30885 of 2004 admitting violations of norms by various persons and 48 answer scripts have been invalidated for violating Note-5 of the Memorandum of admission. In this regard, the relevant passage in para 29 of the counter affidavit filed by the TNPSC is extracted hereunder:

"With reference to the averments made in paras 11 and 12 of the Writ Petition, it is submitted that in the Group I Main Written Examination, in the valuation of the answer book it was ensured that the Commission's instructions were strictly adhered to and 48 answer books have been invalidated for the reason that the candidates have used Colour Pens, Sketch Pencil etc., for underlining / drawing / highlighting the answers in the answer books. ......."

31. When the TNPSC invalidated 48 answer scripts for using colour pens, sketch pens and pencils etc., for underlining / drawing / highlighting, the same yardstick should have been adopted by the TNPSC in the case of 83 candidates among the 91 candidates as they also committed the same violations as found by the second Advocate Commissioner, as otherwise, the action of the TNPSC would be characterised as arbitrary and discriminatory and violative of Articles 14 and 16 of the Constitution. Hence, we have no hesitation in holding that since the 83 among the 91 candidates violated the first portion of clause 14 of the instructions and clause 22 of the instructions read with Note-5 of Memorandum of admission, their answer scripts are liable to be invalidated.

32.The following judgments relied on by the learned senior counsel for the appellants squarely applies to the facts of this case.

(a) The Honourable Apex Court judgment in Karnataka Public Service Commission and others Vs. B.M.Vijaya Shankar and others [AIR 1992 SC 952]

(b) The Honourable Apex Court judgment in Central Board of Secondary Education Vs. Ms.Vineeta Mahajan and another [AIR 1994 SC 733]

(c) Division Bench judgment of this Court in Dr.M.Vennila Vs.Tamil Nadu Public Service Commission [2006 (3) CTC 449]

(d) Division Bench judgment of this Court in Dr.A.Rajapandian Vs. State of Tamil Nadu [2006(5)CTC 529]

(e) Division Bench judgment of this Court in The Tamil Nadu Public Service Commission and others Vs. R.Srinivasan and others in W.A.No.1408 and 1045 of 2009 (decided on 12.10.2009)

(f) Division Bench judgment of the Punjab and Haryana High Court in Santosh Vs. State of Haryana and another in C.W.P.No.4819 of 2002.

33.The Division Bench judgment of this Court in W.P.No.17639 of 2001 etc., batch (decided on 25.02.2005) and the Division Bench judgment of this Court in W.A.No.585 of 2009 (decided on 11.11.2009) relied on by the learned counsel for the TNPSC are not applicable to the facts of this case.

34.In the judgment of the Honourable Apex Court in Karnataka Public Service Commission and others Vs. B.M.Vijaya Shankar and others [AIR 1992 SC 952] the Karnataka Public Service Commission refused to evaluate the answer scripts of the candidates who disregarded the instructions issued by the Commission by writing their roll numbers not only on the front page of the answer scripts in the space provided for it, but even at other places. Those candidates approached the Karnataka Administrative Tribunal and the Tribunal issued direction to the Commission to evaluate answer scripts. Ultimately, the matter went to the Honourable Apex Court and the Apex Court reversed the judgment of the Tribunal. Clause (1) of the instructions to candidates states that candidates should write their register number and other particulars in the space provided and they should not write the same in other places. Clause (xiii) of the instructions contemplate that the failure on the part of the candidates in complying with the instructions would render them liable for punishment, as the Commission may deem fit to impose. Clause (xii) of the instructions states that the candidates must abide by instructions. It was argued that Clause (xiii) dealing with punishment was vague and that could not give power to the Commission not to evaluate the answer scripts. The same was rejected by the Honourable Apex Court and the relevant passage from para 2 of the judgment is extracted hereunder:

"2.....Relevant clause (1) of the Instructions to Candidates is extracted below:

Before commencing your answers please write your register number and other particulars in the space provided above. Do not write your name or register number or sign anywhere in the answer book or on any loose sheets, such as precis sheets, maps, graph papers, etc.

It is not disputed and it was found, even, by the Tribunal that it was printed on the first page of, every, answer book. Its observance was mandatory and its disregard was punishable as is clear from instructions (xii) and (xiii) of General Instructions to the candidates which are extracted below:

(xii) The candidates must abide by such instructions as may be specified on the cover of the answer book or any further instructions which may be given by the Supervisor/Invigilator of the examination.

(xiii) If the candidates fail to do so or indulge in disorderly or improper conduct, they will render themselves liable to expulsion from examination and/or such other punishment as the Commission may deem fit to impose.

Is the expression, such other punishment as the Commission may deem fit to impose vague and thus arbitrary? We do not think so. Read with clause (xii) it presents no difficulty. It provides action for breach of that which is, clearly, specified. It cannot be characterised as vague. And then any capricious exercise of power can always be assailed. More important than this is that provisions attempting to infuse discipline in competitive examinations to be conducted by the Commission cannot be construed with same yardstick as a provision in penal statutes. Moreover the Commission did not impose any penalty on the candidates. Their examination was not cancelled nor they were debarred from taking any examination conducted by the Commission for that year or any year, in future. Their marks in papers, other than those in which they were found to have acted in disregard of instructions were declared. The only action taken was that those answer books in which roll numbers had been written inside were not subjected to evaluation. In our opinion there was nothing, basically, wrong in it."

35.In the present appeals, the instructions are very clear and there is no vagueness and the instructions makes it clear that the violation of instructions would lead to invalidation of answer scripts. Thus, as per the aforesaid judgment of the Honourable Apex Court, the TNPSC ought to have invalidated the answer scripts.

36.In the judgment of the Honourable Apex Court in Central Board of Secondary Education Vs. Ms.Vineeta Mahajan and another [AIR 1994 SC 733] the Central Board of Secondary Education (CBSE) cancelled the examination of a student for having in possession some material while the candidate wrote examination. The Delhi High Court interfered with the order of the CBSE cancelling the examination holding that the student had not copied and the material was not used for copying and that therefore, mere possession of some material without using the same could not be treated as using unfair means at the examination. The judgment of the Delhi High Court was reversed by the Honourable Apex Court. The findings of the Delhi High Court is extracted in para 4 of the judgment of the Honourable Apex Court and the relevant passage therein is extracted hereunder:

"4....... Having come to the conclusion, on facts, that the petitioner had not copied, the question of imposing any penalty merely on the presumption of some written notes being found with the candidate, could not be arrived at, on the facts and circumstances of the present case......."

In para 5 of the judgment, the Honourable Apex Court gave its reasoning for reversing the judgment of the High Court and the same is extracted hereunder:

"5. We do not agree with the reasoning of the High Court. The High Court fell into patent error in reading a rebuttable presumption in the language of the Rule. The Rule clearly defines the use of unfair means at the examination and lays down in simple language that a candidate having in possession papers, relevant to the examination, in the paper concerned, shall be deemed to have used unfair means at the examination. The sine qua non, for the misconduct under the Rule, is the recovery of the incriminating material from the possession of the candidate. Once the candidate is found to be in possession of papers relevant to the examination, the requirement of the Rule is satisfied and there is no escape from the conclusion that the candidate has used unfair means at the examination. The Rule does not make any distinction between bona fide or mala fide possession of the incriminating material. The High Court reasoning, that the candidate having not used the material in spite of the opportunity available to her the possession alone would not attract the provisions of the Rule, in our view, is not borne out from the plain language of the Rule. May be, because of strict vigilance in the examination hall the candidate was not in a position to take out the papers from the pencil box and use the same. The very fact that she took the papers relevant to the examination in the paper concerned and was found to be in possession of the same by the invigilator in the examination hall is sufficient to prove the charge of using unfair means by her in the examination under the Rule."

37. In the Division Bench judgment of this Court in Dr.M.Vennila Vs.Tamil Nadu Public Service Commission [2006 (3) CTC 449] the TNPSC rejected the application of the candidate who applied for the post of Assistant Surgeon (General) in the Tamil Nadu Medical Services for the year 2003-2004 on the ground that the candidate failed to sing the application below column 24 and the same amounted to violation of para 17 of the instructions. A Division Bench of this Court upheld the rejection of application by TNPSC in the aforesaid judgment.

38. In the First Bench judgment of this Court in Dr.A.Rajapandian Vs. State of Tamil Nadu [2006 (5) CTC 529] the First Bench of this Court followed the aforesaid Division Bench judgment [2006 (3) CTC 449] and upheld the rejection of 68 applications of the candidates who applied for the post of Veterinary Assistant Surgeon in the Tamil Nadu Animal Husbandry Services for the year 2005-2006 on the ground that the candidates not signed the applications as per the instructions.

39.The First Bench of this Court in The Tamil Nadu Public Service Commission and others Vs. R.Srinivasan and others in W.A.No.1408 and 1045 of 2009 (decided on 12.10.2009) considered Clause 12 of the instructions which is the same as that of Clause 9 of the instructions herein and also Clause 16(i) of the instructions which is similar to Note-5 of the Memorandum of admission. In the said case, as in Clause 9 of the instructions herein, the candidates are permitted to use blue or black or blue black inks. There is prohibition for use of colour pens, sketch pens and colour pencils. The candidate did not use colour pens, sketch pens or colour pencils. He used one of the inks permitted for writing and the other permitted ink for underlining. The TNPSC invalidated his answer scripts. The First Bench of this Court held that when the candidate did not use colour pens, sketch pens or colour pencils, the TNPSC was not correct in invalidating the answer papers.

40.In the present appeals, as stated above, the respondent - candidates used colour pens, sketch pens and pencils that were prohibited as per instructions.

41.A Division Bench of the Punjab and Haryana High Court in Santosh Vs. State of Haryana in C.W.P.No.4819/2002 upheld the decision of the Haryana Public Service Commission cancelling the answer scripts pertaining to 3 subjects on account of violation of instructions. The Division Bench held as follows:

"Learned counsel for the Commission produced the said three papers in a sealed cover which was opened in Court and we perused the papers in question. Learned counsel for respondent No.2 also filed written statement and the stand of the respondent No.2 is that the petitioner had used Black Ink in the said papers which is specifically prohibited under the regulations. Upon perusal of the said three papers, we found that in the answer book pertaining to the subject of the General Knowledge, Black Ink has been used from page 4 (internal) till the end. So far as the answer book pertaining to the subject of Business Organisation and Management is concerned, the entire paper has been answered in Black Ink including the title page and similarly, the answer book pertaining to the subject of Business Organisation and Management is concerned, the entire paper has been answered in Black Ink including the title page and similarly, the answer book pertaining to the subject of Sociology, the entire paper has been answered in Black Ink including part of the title page.

It is specifically prohibited under instruction No.3-A and it is provided therein that the candidate shall not use any other ink except Blue or Blue Black (copy of which has been annexed as Annexure P-1). The relevant extract of instruction to candidates read as under:

"INSTRUCTION TO CANDIDATES"

1. XX XX XX

2. XX XX XX

XX XX XX

3.(a) Disclosure of identity in any form like use of ink other than blue or blue black ... writing of Roll Number and name at places other than specified writing of serial No. of the scripts or putting of any type of mark etc., will amount to use of unfair means and will be penalized by cancelling the paper and answering Zero marks."

We are satisfied that the answer books of the petitioner pertaining to three subjects had been correctly cancelled on account of violation of instructions / rules and also on account of disclosure of identity. We had earlier expressed our opinion under similar circumstances in another case i.e., Civil Writ Petition No.775 of 2000 (Narinder Gehleut Versus State of Haryana and another) decided on 11.2.2000. Thus no case for interference has been made out by the petitioner."

42 .Mr.N.G.R.Prasad, learned counsel appearing for the respondent No.50 in W.A.No.1063 of 2009 sought to sustain the order of the learned single Judge and adopted the arguments advanced by the learned senior counsel for the TNPSC.

43.The learned Senior counsel for the TNPSC relied on the Division Bench judgments of this Court in W.P.No.17639 of 2001 etc., batch (decided on 25.02.2005) and W.A.No.585 of 2009 (decided on 11.11.2009).

44.W.P.No.17639 of 2001 etc., batch relates to recruitment of Sub-Inspector of Police. The Tamil Nadu Uniformed Services Recruitment Board resorted to zone wise selection, when the Rule do not provide for zone wise selection. The Division Bench held that State wise selection alone should have been conducted and the zone wise selection was bad. However, the Division Bench did not set aside the selection as there was no other infirmity in the selection and the selection was made on merits. Instead of conducting State wise selection, they had conducted zone wise selection. Hence, the said judgment is of no assistance to the respondent TNPSC. Even in the said case, the persons who approached the Court were granted the relief, if they obtained more marks than the cut off marks in any of the zones.

45.In the another Division Bench judgment in W.A.No.585 of 2009, the TNPSC cancelled the provisional selection of the candidate for Group-IV Services on the ground that she failed to enclose the community certificate along with her application. The Division Bench held that the candidate produced all the essential certificates relating to qualification and that therefore, she was eligible to participate in the selection. It was also held that all the certificates that are required to be enclosed along with the application could not be treated equally. The community certificate could be produced even after the submission of application, but before provisional selection is made. Furthermore, the Division Bench found that the non-submission of certificate was not due to the fault of the candidate and it was due to the fact that the authorities belatedly issued the said certificate. In this regard, paras 7 and 20 of the said judgment are extracted hereunder:

"7.There can be no controversy that the instructions to candidates and the brochure bind the candidates and the Service Commission, according to which, the candidates are bound to produce all the necessary documents / certificates along with the application. In general, the application shall be rejected for non-production of such certificates / documents. But, in our considered opinion, an exception can be carved out to the same. At this juncture, it would be worthwhile to clarify that all certificates, which are required to be produced along with application, cannot be treated equally. There are some certificates, like certificates relating to the basic qualification etc., which are essential, without which the applications cannot be entertained at all. On the other hand, there are certain other certificates, like Community Certificate, certificates relating to special consideration, like Sports Certificates, NCC, NSS Certificates etc., which are not essential for entertaining the application of the candidates. So, there can be no controversy that non-production of the former kind of certificates within the cut off date, shall be a ground to reject the application summarily, as mentioned in the instructions to the candidates and information brochure, because, they relate to the essential qualifications for making application. To put it otherwise, unless the Service Commission is satisfied about the eligibility criteria based on the said certificates, it cannot entertain the applications, and therefore, the applications in such an event are to be necessarily rejected.

20.It is true that the first respondent did not produce the Community Certificate before the provisional list of selected candidates was finalized. On this score, in normal course, applying the principles stated above, this Court would have held that the claim of the first respondent for consideration under the reserved quota for Scheduled Tribe should be rejected. But, we do not propose to do so, for the simple reason, as we have elaborately narrated above that the first respondent cannot be blamed for the belated issuance of Community Certificate. As we have already stated, the request of the first respondent for issuance of Community Certificate was pending before the Revenue Divisional Officer for more than a decade. It is only in these special and peculiar circumstances, we are inclined to sustain the order of the learned single Judge."

46.In our view, both the judgments relied on by the learned Senior counsel for the respondent TNPSC are of no use. Those cases are not related to violation of instructions as to the writing of examinations, while the judgments cited by the learned Senior counsel for the appellants are directly on the point.

47. After reserving the orders, at the time of drafting the judgment, we noticed that the candidates selected for Group-I Services of the Tamil Nadu Government for the year 2000-2001 who are respondents and who have not chosen to appear before the learned single Judge, no proper service has been effected and even the substituted service ordered was carried out improperly in the sense, no names of the respondents have been published, by the order dated 21.2.2010, we have directed the learned counsel for the appellant to effect proper substituted service. Accordingly, paper publication has been effected in 'Indian Express' dated 23.2.2011, with the names of all the party respondents. Proof of service has been filed on behalf of the appellants. However, in spite of the same, the party respondents neither appeared in person nor through the counsel.

48. Our discussion would lead to the following conclusions:

i) The selection to the high brass Group-I services should have been made in a transparent and unbiased manner by the TNPSC, without giving scope or room for anybody to raise their little finger against such selection.

ii) TNPSC should have rejected the answer scripts, which are in violation of the instructions to the candidates and other criterion fixed by the TNPSC itself.

Iii) What made the TNPSC to entertain and value even the answer scripts which are in total violation of the conditions prescribed by the TNPSC has not been explained by TNPSC, which would drive us to arrive at one and only irresistible conclusion that everything is not well with the selection, compelling our interference into the same, to set right an illegality committed against genuine candidates.

iv) We are quite aware that by now most of the selected candidates have put in a considerable length of service. But, that does not mean that an illegally and improperly appointed candidates should be allowed to continue with their services at the cost of the genuine candidates, that too when their such illegal appointments were questioned from the beginning. Therefore, the illegally appointed candidates cannot claim any equity. In fact, as has already been pointed out by us supra, none of the selected candidates barring respondent Nos.50, 52 and 57 have appeared before us, in spite of substituted service. This does not mean that only because they have not appeared before the court, we are setting aside the selection of some of them. But, we are constrained and compelled to set aside the selections of some of them, only because they have indulged in malpractices and grossly violated the instructions to the candidates, on which ground itself, their answer sheets should have been thrown out of consideration by the TNPSC itself.

v) It has been established before us by the appellants that had not the answer sheets of the candidates who have indulged in malpractices and grossly violated the instructions to the candidates, were evaluated, these appellants would have easily got through the selection procedure. This aspect has not been denied on the part of the TNPSC also.

vi) Though the appellants have submitted before us the calculation statements as to who many marks they should have been awarded, we are not going into that aspect since it is for the expert body to consider. However, we direct the TNPSC to consider their calculation statement also while revaluating their answer sheets.

48.For all the aforesaid reasons, the judgment of the learned single Judge is set aside and barring the eight respondents namely, S.Visakan, C.Shyamaladevi, R.Pandiarajan, K.Kingslin, K.Prabhakar, D.Padmavathi, M.Jayaraman and K.Varadharajan (R-11, 31, 30, 33, 38, 44, 54 and 91 in W.A.No.1063 of 2009) the selection and appointment of all the other 83 respondents are set aside for having indulged in malpractices and for grossly violating the instructions to the candidates, as has been pointed out by us supra. It has been established before us by the appellants that had the answer sheets of the candidates who have indulged in malpractices and indulged in gross violation of the instructions to the candidates, were excluded, these appellants would have got through the selection. Therefore, the Tamil Nadu Public Service Commission is directed to revalue the answer sheets of only the candidates who have not indulged in violation of any of the instructions and by excluding the candidates who committed such gross violations and errors and prepare the merit list afresh and go on with their appointment. But, since the appellants have not put in any service, and taking into consideration the duties and responsibilities attached to the posts to which they have to be appointed, we are not directing the Government to grant them the seniority. This should be read only as that the appellants should be appointed, according to their merit, after re-valuating their answer sheets, but they should be placed below all the serving candidates (of course, debarring the selection of illegally appointed candidates as is directed in this judgment), as on date, in the respective cadres. The entire process shall be completed within six weeks from the date of receipt of a copy of this judgment, keeping in mind the observations made by us in this judgment.

The writ appeals are allowed accordingly. No costs. Consequently, connected miscellaneous petition is closed.

(E.D.R., J.) (D.H.P., J.)

TK/Rao

Note to office:

Registry is directed to return all the original documents viz.

Answer scripts to the learned standing counsel for TNPSC,

under proper acknowledgement.

To

The Secretary

Tamil Nadu Public Service Commission

Government Estate,

Chennai

In nutshell, 83 out of 91 candidates committed the following types of violations, which is not disputed by the TNPSC.

"1.Sketch pen used candidates - 3

2.Pencil used candidates - 66

3.Two colours used candidates - 21

4.Irrelevant marking used candidates - 5

5.Writing Name / Register No. - 1

6.Wrong question no. written candidates - 55

7.Perfect candidates - 8

9.First page of main answer book left blank - 21 "

14.The learned single Judge held that non-adoption of scaling technique for evaluation of subjects where less than five candidates appeared would not affect the selection. The learned single Judge also held that violation of instruction and Memorandum of admission would not result in the invalidation of answer scripts. In the result, the learned single Judge rejected the writ petitions leading to the filing of the present writ appeals.

15.The issues that have to be decided in both the writ appeals are:

(i)whether the non-adoption of the scaling technique for evaluation of answer scripts in respect of subjects where less than 5 candidates appeared would result in setting aside of the entire selection.

(ii)whether the violations of instructions and the memorandum of admission committed by the selected candidates could invalidate their selection to Group-I Services for the year 2000-2001; and

16.According to the learned senior counsel for the appellants, the learned single Judge ought to have set aside the selection, since the TNPSC failed to adopt the scaling technique uniformly for evaluation of all answer scripts relating to optional subjects. According to them, as per clause 10(iv) of the notification, the scaling technique for evaluation of all answer scripts should be adopted uniformly to all the subjects. According to the learned senior counsel for the appellants, the faulty adoption of this crucial technique in the selection procedure has distarded the whole ranking system. According to him, the glaring violation of the procedure of selection under clause 10(iv) of the notification is that 25 out of 91 candidates were selected without adopting this technique. But however, the TNPSC adopted the scaling technique for evaluation of answer scripts in respect of subjects where there were more than five candidates appeared. To explain, in respect of subjects where less than five candidates appeared, the scaling technique was not adopted.

17.On the other hand, the learned senior counsel for the respondent TNPSC submitted that since the expert opined that if the scaling technique is adopted for the subjects written by the candidates five or less than five in number, result will be negative / counter productive. Therefore, based on the expert's opinion, the scaling technique was only adopted for the subjects where more than five candidates appeared. It was also argued that the scaling technique was applied to the appellants and they were beneficiaries and that the candidates who appeared in the subjects, where less than five persons appeared, did not choose to question the same. The learned senior counsel also took us through the elaborate discussion of the learned single Judge on the adoption of scaling technique for evaluation of answer scripts. The learned counsel for respondent No.50 sought to sustain the order of the learned single Judge and supported the submissions of the learned senior counsel for the TNPSC.

18.We have gone through the reasoning given by the learned single Judge. We are in entire agreement with the learned single Judge in holding that there is no infirmity in adopting the scaling technique for evaluation of answer scripts in respect of subjects where more than five candidates appeared. The learned single Judge also found that while the appellant in W.A.No.1287 of 2009 secured 951.50 out of 1800 marks without application of scaling technique, he secured 952.27 marks on the adoption of scaling technique. Likewise, the appellant in W.A.No.1063 of 2009 secured 1021 out of 1800 marks without application of scaling technique and secured 1045.23 marks on the adoption of scaling technique. The appellants were not able to demonstrate as to how the non-adoption of scaling technique for evaluation of answer scripts in respect of subjects where less than five candidates appeared would put them in a disadvantageous position, particularly when the TNPSC stated that the raw marks obtained by them would be of advantageous to those candidates and not the scaling technique. Furthermore, as rightly pointed out by the learned senior counsel for the TNPSC, none of the candidates whose answer scripts were not evaluated based on scaling technique complained of prejudice. For the aforesaid reasons, we confirm the findings of the learned single Judge that the non-adoption of scaling technique for evaluation of answer scripts in respect of subjects where less than five candidates appeared would not cause any prejudice. Issue No.1 is answered accordingly.

19.While interpreting Note 5 of the Memorandum of admission, the learned single Judge, in para 23(h) of the judgment held that there is no prohibition in the instructions against using of ordinary pencils and using of colour pencils alone was prohibited. In view of the importance of the matter, Note-5 of Memorandum of admission is once again reproduced hereunder:

"5.The candidates should not use colour pens, sketch pens, pencils, except those permitted in the instructions etc., to candidates for any purpose including drawing, underlining and highlighting. They should not write their Register number anywhere (including additional answer books) except in the place provided at the top of the front page of the main answer book."

20.In para 23(h) of the judgment the learned single Judge read pencils as "colour pencils" by adding "colour" before "pencils". In our view, the same is quite unwarranted. When Note-5 of the Memorandum of admission makes it very clear that use of pencils was prohibited, the learned single Judge is not correct in holding use of colour pencils alone was prohibited. In our view, pencils mean both the ordinary pencils as well as colour pencils. In fact, the written arguments filed by TNPSC strengthen our view as TNPSC issued the following instructions in clause 16(i) of the instructions for the examinations that were conducted subsequently.

"16(i) Candidates should not use colour pens, sketch pens, colour pencils except those permitted in the "Instructions etc., to candidates for any purpose including drawing, underlining and highlighting. The answer books of the candidates who violate this instruction will be invalidated."

That is, the TNPSC added "colour" before "pencils" and prohibiting use of colour pencils alone in the subsequent examinations by way of the aforesaid instruction No.16(i).

21.As far as sketch pens are concerned, they are only in colours. As per Note-5 of the Memorandum of admission, the TNPSC prohibited use of pencils. Furthermore, the use of pencils was prohibited as it could be easily erased and corrections could be made. In any event, Note-5 of the Memorandum of admission is unambiguous and use of pencils is prohibited in the examination for Group I Services for the year 2000-2001. The intention and the aim that is sought to be achieved by prohibiting the use of pencil is to curtail candidates from indulging in malpractices. In fact, n clause 9 of the instructions it has been clearly mentioned that "candidates are permitted to use only fountain pen, steel pen and ball point pen using blue or black or blue black colour inks only." Therefore, we have no hesitation to hold that clauses 9 and 22 of the instructions that were extracted above read with Note-5 of the Memorandum of admission prohibit use of pencils.

22. To verify, we have directed the Tamil Nadu Public Service Commission to produce before us the answer sheets of the selected and non-selected candidates. Accordingly, they have produced before us the answer sheets. We have gone through the answer sheets, with reference to the second Advocate Commissioner's report. We are able to find many lacunae and malpractices adopted on the part of some of the selected candidates. As a tip of the iceberg we extract hereunder some of the lacunae observed by us:

i) J.Vijayarani (R.9 in W.A.No.1063 of 2009) (with Registered No.519920) has used religious symbols (om, Cross and crescent) in four papers in the first page of the main answer book.

ii) T.India (R.52 in W.A.No.1063 of 2009) (with Registration No.537915) used the 'Sum' symbol 'c' at top of several pages in Sociology Paper-II.

Iii) Chamundeeswari (R.78 in W.A.No.1063 of 2009) (with Registration No.502369), left the 7th page blank and had written a peculiar code 'mani' at the centre of the full blank page in the General Studies Paper-I.

23. The second Advocate Commissioner found that 66 out of 91 selected candidates used pencils, 3 out of 91 used colour pens and 21 out of 91 used two colours, and the same is not in dispute. When the candidates appeared for the higher service and disregarded the instructions, the same could be viewed very seriously. Though the learned single Judge referred to the report of the second Advocate Commissioner, he did not take into account the aforesaid violations pointed out by the second Advocate Commissioner and instead he proceeded simply on the premise that use of pencils was not prohibited.

24.The second Advocate Commissioner found that five of the selected candidates used religious symbols, such as, Cross, 'Om' and half moon etc. In this regard, the learned single Judge, in para 25 of the judgment held that the same could not be construed as irrelevant markings, inasmuch as the candidates put only the symbols of all religions. The aforesaid finding is found in the passage from para 25 of the judgment of the learned single Judge, which is extracted hereunder:

"25...... That apart, in respect of the violation about mentioning symbols viz., "cross, Ohm, half moon", I am of the view, by applying clause 14, the same cannot be construed to be irrelevant marking inasmuch as the candidate has put only the symbols of all religions and the same cannot said to be either irrelevant or impertinent marking which is likely to appeal the examiners......"

25.When second portion of clause 14 of the instructions makes it clear that any marks or irrelevant markings would invalidate the answer scripts, the learned single Judge was not correct in holding that the candidates put only the symbols of all the religions. We wonder as to in what manner, the marking of such religious symbols are relevant for the purpose. The intended examination is not meant to assess the religious beliefs of the candidates,but their knowledge on various subjects. These cheap techniques of sympathy gaining, adopted on the part of the candidates, in violation of the instructions. It is within every prudent man's knowledge that such irrelevant markings are strictly prohibited, since they could even be a guiding/identification factors for indulging in malpractices, lest it would be very difficult to identify, chase and trace the script of a particular candidate. In this regard, the second portion of clause 14 of the instructions is reproduced hereunder:

"Candidates should not write any irrelevant or impertinent remarks or any appeal or any marks or irrelevant matter including an appeal to the Examiner for higher marks. The answer book of the candidates who violate this instruction will be invalidated."

Hence, we are not able to agree with the findings recorded by the learned single Judge in this regard

26. Moreover, clause 14 of the instructions makes it clear that any marks or irrelevant matters could invalidate the answer scripts. Therefore, any marks or irrelevant matters written by the candidates, particularly, those who aspire to Group I posts, their answer scripts could be invalidated as per clause 14 of the instructions. Clause 22 of the instructions makes it very clear that violation of Memorandum of admission would lead to the rejection of the application and would lead to the invalidation of the answer scripts. Thus, the answer scripts of the candidates, who used sketch pens, pencils/colour pencils and colour pens had to be invalidated in view of Note-5 of Memorandum of admission read with clause 22 of the instructions. Therefore, the TNPSC ought to have invalidated the answer scripts of the candidates who used colour pens / sketch pens / pencils and also who wrote any marks or irrelevant markings in the answer scripts.

27.It is true that the other violations, namely, writing names and register numbers at improper places and also writing wrong question numbers, could not lead to invalidation of answer scripts in view of clause 11 and first portion of clause 14 and clause 23 of the instructions. As per those clauses, there would be only reduction in marks and the same would not lead to invalidation. But when there is violation of the Memorandum of admission, that would lead to invalidation of answer scripts, as per clause 22 of the instructions i.e. if the candidate used colour pens and/or sketch pens and/or pencils, his/her answer scripts would be invalidated. Likewise, when there is violation of the second portion of clause 14 of the instructions by writing any marks or any irrelevant matters, that would lead to invalidation of the concerned answer script. Hence, we are not in agreement with the findings recorded by the learned single Judge.

28.In fact, the learned single Judge, in para 35 of the judgment, held as follows:

"35.However, when it is stated by the respondent / TNPSC that at least 48 answer papers of the candidates who have violated the instructions have been invalidated on the basis that they have used extensively the colour pens, sketch pens and colour pencils in order to identify them to the examiners, especially in the circumstances that the learned advocate Commissioner has found that some marks which are not expected to be made in the answer papers have been made, the respondent/TNPSC should have taken care to prevent such use of signs even though the same may not be termed as irrelevant. Nevertheless, the TNPSC being the constitutional functionary, entrusted with the avowed object of selecting candidates for public service ought to be more careful because, it is those candidates selected by the TNPSC who are going to be the valuable officers in the governance of the state. Certainly, even a minor fault on the part of the TNPSC can have adverse repercussion on the governance of the State in future. The report of the learned advocate-Commissioner makes it clear that at least in few number of cases the answer papers were not in accordance with the instructions given and in spite of the same, the TNPSC has taken its own stand that such markings formed no basis for attracting the examiners."

However, the learned single Judge found that those violations could not invalidate the answer scripts of the selected candidates.

29.More importantly, the appellant in W.A.No.1063 of 2009 categorically pleaded in para 11 of the affidavit filed in support of the writ petition in W.P.No.30885 of 2004 that at least 40 candidates have used sketch pens and some of the candidates used sketch pens and pencils violating the norms fixed by the TNPSC. Hence, the entire selection was illegal and violative of the norms and rules fixed by the TNPSC. In this regard, para 11 of the affidavit filed in support of the writ petition in W.P.No.30885 of 2004 is extracted hereunder:

"11) I humbly submit that it was reliably learnt that some of the candidates have used sketch pens and pencils by violating the norms fixed by the TNPSC. Immediately representation was given by the candidates in time but, no action was taken. It was also learnt on enquiry that more than 20% of the selected candidates (ie) atleast 40 candidates have used Sketch Pens. Hence, the act of the respondent in not taking action against the candidates who have used Sketch Pen and Pencils is nothing but allowing the non-meritorious candidates to be selected. Hence, the entire selection process is illegal and violative of the norms and rules fixed by TNPSC."

30. The TNPSC filed a counter affidavit to the writ petition in W.P.No.30885 of 2004 admitting violations of norms by various persons and 48 answer scripts have been invalidated for violating Note-5 of the Memorandum of admission. In this regard, the relevant passage in para 29 of the counter affidavit filed by the TNPSC is extracted hereunder:

"With reference to the averments made in paras 11 and 12 of the Writ Petition, it is submitted that in the Group I Main Written Examination, in the valuation of the answer book it was ensured that the Commission's instructions were strictly adhered to and 48 answer books have been invalidated for the reason that the candidates have used Colour Pens, Sketch Pencil etc., for underlining / drawing / highlighting the answers in the answer books. ......."

31. When the TNPSC invalidated 48 answer scripts for using colour pens, sketch pens and pencils etc., for underlining / drawing / highlighting, the same yardstick should have been adopted by the TNPSC in the case of 83 candidates among the 91 candidates as they also committed the same violations as found by the second Advocate Commissioner, as otherwise, the action of the TNPSC would be characterised as arbitrary and discriminatory and violative of Articles 14 and 16 of the Constitution. Hence, we have no hesitation in holding that since the 83 among the 91 candidates violated the first portion of clause 14 of the instructions and clause 22 of the instructions read with Note-5 of Memorandum of admission, their answer scripts are liable to be invalidated.

32.The following judgments relied on by the learned senior counsel for the appellants squarely applies to the facts of this case.

(a) The Honourable Apex Court judgment in Karnataka Public Service Commission and others Vs. B.M.Vijaya Shankar and others [AIR 1992 SC 952]

(b) The Honourable Apex Court judgment in Central Board of Secondary Education Vs. Ms.Vineeta Mahajan and another [AIR 1994 SC 733]

(c) Division Bench judgment of this Court in Dr.M.Vennila Vs.Tamil Nadu Public Service Commission [2006 (3) CTC 449]

(d) Division Bench judgment of this Court in Dr.A.Rajapandian Vs. State of Tamil Nadu [2006(5)CTC 529]

(e) Division Bench judgment of this Court in The Tamil Nadu Public Service Commission and others Vs. R.Srinivasan and others in W.A.No.1408 and 1045 of 2009 (decided on 12.10.2009)

(f) Division Bench judgment of the Punjab and Haryana High Court in Santosh Vs. State of Haryana and another in C.W.P.No.4819 of 2002.

33.The Division Bench judgment of this Court in W.P.No.17639 of 2001 etc., batch (decided on 25.02.2005) and the Division Bench judgment of this Court in W.A.No.585 of 2009 (decided on 11.11.2009) relied on by the learned counsel for the TNPSC are not applicable to the facts of this case.

34.In the judgment of the Honourable Apex Court in Karnataka Public Service Commission and others Vs. B.M.Vijaya Shankar and others [AIR 1992 SC 952] the Karnataka Public Service Commission refused to evaluate the answer scripts of the candidates who disregarded the instructions issued by the Commission by writing their roll numbers not only on the front page of the answer scripts in the space provided for it, but even at other places. Those candidates approached the Karnataka Administrative Tribunal and the Tribunal issued direction to the Commission to evaluate answer scripts. Ultimately, the matter went to the Honourable Apex Court and the Apex Court reversed the judgment of the Tribunal. Clause (1) of the instructions to candidates states that candidates should write their register number and other particulars in the space provided and they should not write the same in other places. Clause (xiii) of the instructions contemplate that the failure on the part of the candidates in complying with the instructions would render them liable for punishment, as the Commission may deem fit to impose. Clause (xii) of the instructions states that the candidates must abide by instructions. It was argued that Clause (xiii) dealing with punishment was vague and that could not give power to the Commission not to evaluate the answer scripts. The same was rejected by the Honourable Apex Court and the relevant passage from para 2 of the judgment is extracted hereunder:

"2.....Relevant clause (1) of the Instructions to Candidates is extracted below:

Before commencing your answers please write your register number and other particulars in the space provided above. Do not write your name or register number or sign anywhere in the answer book or on any loose sheets, such as precis sheets, maps, graph papers, etc.

It is not disputed and it was found, even, by the Tribunal that it was printed on the first page of, every, answer book. Its observance was mandatory and its disregard was punishable as is clear from instructions (xii) and (xiii) of General Instructions to the candidates which are extracted below:

(xii) The candidates must abide by such instructions as may be specified on the cover of the answer book or any further instructions which may be given by the Supervisor/Invigilator of the examination.

(xiii) If the candidates fail to do so or indulge in disorderly or improper conduct, they will render themselves liable to expulsion from examination and/or such other punishment as the Commission may deem fit to impose.

Is the expression, such other punishment as the Commission may deem fit to impose vague and thus arbitrary? We do not think so. Read with clause (xii) it presents no difficulty. It provides action for breach of that which is, clearly, specified. It cannot be characterised as vague. And then any capricious exercise of power can always be assailed. More important than this is that provisions attempting to infuse discipline in competitive examinations to be conducted by the Commission cannot be construed with same yardstick as a provision in penal statutes. Moreover the Commission did not impose any penalty on the candidates. Their examination was not cancelled nor they were debarred from taking any examination conducted by the Commission for that year or any year, in future. Their marks in papers, other than those in which they were found to have acted in disregard of instructions were declared. The only action taken was that those answer books in which roll numbers had been written inside were not subjected to evaluation. In our opinion there was nothing, basically, wrong in it."

35.In the present appeals, the instructions are very clear and there is no vagueness and the instructions makes it clear that the violation of instructions would lead to invalidation of answer scripts. Thus, as per the aforesaid judgment of the Honourable Apex Court, the TNPSC ought to have invalidated the answer scripts.

36.In the judgment of the Honourable Apex Court in Central Board of Secondary Education Vs. Ms.Vineeta Mahajan and another [AIR 1994 SC 733] the Central Board of Secondary Education (CBSE) cancelled the examination of a student for having in possession some material while the candidate wrote examination. The Delhi High Court interfered with the order of the CBSE cancelling the examination holding that the student had not copied and the material was not used for copying and that therefore, mere possession of some material without using the same could not be treated as using unfair means at the examination. The judgment of the Delhi High Court was reversed by the Honourable Apex Court. The findings of the Delhi High Court is extracted in para 4 of the judgment of the Honourable Apex Court and the relevant passage therein is extracted hereunder:

"4....... Having come to the conclusion, on facts, that the petitioner had not copied, the question of imposing any penalty merely on the presumption of some written notes being found with the candidate, could not be arrived at, on the facts and circumstances of the present case......."

In para 5 of the judgment, the Honourable Apex Court gave its reasoning for reversing the judgment of the High Court and the same is extracted hereunder:

"5. We do not agree with the reasoning of the High Court. The High Court fell into patent error in reading a rebuttable presumption in the language of the Rule. The Rule clearly defines the use of unfair means at the examination and lays down in simple language that a candidate having in possession papers, relevant to the examination, in the paper concerned, shall be deemed to have used unfair means at the examination. The sine qua non, for the misconduct under the Rule, is the recovery of the incriminating material from the possession of the candidate. Once the candidate is found to be in possession of papers relevant to the examination, the requirement of the Rule is satisfied and there is no escape from the conclusion that the candidate has used unfair means at the examination. The Rule does not make any distinction between bona fide or mala fide possession of the incriminating material. The High Court reasoning, that the candidate having not used the material in spite of the opportunity available to her the possession alone would not attract the provisions of the Rule, in our view, is not borne out from the plain language of the Rule. May be, because of strict vigilance in the examination hall the candidate was not in a position to take out the papers from the pencil box and use the same. The very fact that she took the papers relevant to the examination in the paper concerned and was found to be in possession of the same by the invigilator in the examination hall is sufficient to prove the charge of using unfair means by her in the examination under the Rule."

37. In the Division Bench judgment of this Court in Dr.M.Vennila Vs.Tamil Nadu Public Service Commission [2006 (3) CTC 449] the TNPSC rejected the application of the candidate who applied for the post of Assistant Surgeon (General) in the Tamil Nadu Medical Services for the year 2003-2004 on the ground that the candidate failed to sing the application below column 24 and the same amounted to violation of para 17 of the instructions. A Division Bench of this Court upheld the rejection of application by TNPSC in the aforesaid judgment.

38. In the First Bench judgment of this Court in Dr.A.Rajapandian Vs. State of Tamil Nadu [2006 (5) CTC 529] the First Bench of this Court followed the aforesaid Division Bench judgment [2006 (3) CTC 449] and upheld the rejection of 68 applications of the candidates who applied for the post of Veterinary Assistant Surgeon in the Tamil Nadu Animal Husbandry Services for the year 2005-2006 on the ground that the candidates not signed the applications as per the instructions.

39.The First Bench of this Court in The Tamil Nadu Public Service Commission and others Vs. R.Srinivasan and others in W.A.No.1408 and 1045 of 2009 (decided on 12.10.2009) considered Clause 12 of the instructions which is the same as that of Clause 9 of the instructions herein and also Clause 16(i) of the instructions which is similar to Note-5 of the Memorandum of admission. In the said case, as in Clause 9 of the instructions herein, the candidates are permitted to use blue or black or blue black inks. There is prohibition for use of colour pens, sketch pens and colour pencils. The candidate did not use colour pens, sketch pens or colour pencils. He used one of the inks permitted for writing and the other permitted ink for underlining. The TNPSC invalidated his answer scripts. The First Bench of this Court held that when the candidate did not use colour pens, sketch pens or colour pencils, the TNPSC was not correct in invalidating the answer papers.

40.In the present appeals, as stated above, the respondent - candidates used colour pens, sketch pens and pencils that were prohibited as per instructions.

41.A Division Bench of the Punjab and Haryana High Court in Santosh Vs. State of Haryana in C.W.P.No.4819/2002 upheld the decision of the Haryana Public Service Commission cancelling the answer scripts pertaining to 3 subjects on account of violation of instructions. The Division Bench held as follows:

"Learned counsel for the Commission produced the said three papers in a sealed cover which was opened in Court and we perused the papers in question. Learned counsel for respondent No.2 also filed written statement and the stand of the respondent No.2 is that the petitioner had used Black Ink in the said papers which is specifically prohibited under the regulations. Upon perusal of the said three papers, we found that in the answer book pertaining to the subject of the General Knowledge, Black Ink has been used from page 4 (internal) till the end. So far as the answer book pertaining to the subject of Business Organisation and Management is concerned, the entire paper has been answered in Black Ink including the title page and similarly, the answer book pertaining to the subject of Business Organisation and Management is concerned, the entire paper has been answered in Black Ink including the title page and similarly, the answer book pertaining to the subject of Sociology, the entire paper has been answered in Black Ink including part of the title page.

It is specifically prohibited under instruction No.3-A and it is provided therein that the candidate shall not use any other ink except Blue or Blue Black (copy of which has been annexed as Annexure P-1). The relevant extract of instruction to candidates read as under:

"INSTRUCTION TO CANDIDATES"

1. XX XX XX

2. XX XX XX

XX XX XX

3.(a) Disclosure of identity in any form like use of ink other than blue or blue black ... writing of Roll Number and name at places other than specified writing of serial No. of the scripts or putting of any type of mark etc., will amount to use of unfair means and will be penalized by cancelling the paper and answering Zero marks."

We are satisfied that the answer books of the petitioner pertaining to three subjects had been correctly cancelled on account of violation of instructions / rules and also on account of disclosure of identity. We had earlier expressed our opinion under similar circumstances in another case i.e., Civil Writ Petition No.775 of 2000 (Narinder Gehleut Versus State of Haryana and another) decided on 11.2.2000. Thus no case for interference has been made out by the petitioner."

42 .Mr.N.G.R.Prasad, learned counsel appearing for the respondent No.50 in W.A.No.1063 of 2009 sought to sustain the order of the learned single Judge and adopted the arguments advanced by the learned senior counsel for the TNPSC.

43.The learned Senior counsel for the TNPSC relied on the Division Bench judgments of this Court in W.P.No.17639 of 2001 etc., batch (decided on 25.02.2005) and W.A.No.585 of 2009 (decided on 11.11.2009).

44.W.P.No.17639 of 2001 etc., batch relates to recruitment of Sub-Inspector of Police. The Tamil Nadu Uniformed Services Recruitment Board resorted to zone wise selection, when the Rule do not provide for zone wise selection. The Division Bench held that State wise selection alone should have been conducted and the zone wise selection was bad. However, the Division Bench did not set aside the selection as there was no other infirmity in the selection and the selection was made on merits. Instead of conducting State wise selection, they had conducted zone wise selection. Hence, the said judgment is of no assistance to the respondent TNPSC. Even in the said case, the persons who approached the Court were granted the relief, if they obtained more marks than the cut off marks in any of the zones.

45.In the another Division Bench judgment in W.A.No.585 of 2009, the TNPSC cancelled the provisional selection of the candidate for Group-IV Services on the ground that she failed to enclose the community certificate along with her application. The Division Bench held that the candidate produced all the essential certificates relating to qualification and that therefore, she was eligible to participate in the selection. It was also held that all the certificates that are required to be enclosed along with the application could not be treated equally. The community certificate could be produced even after the submission of application, but before provisional selection is made. Furthermore, the Division Bench found that the non-submission of certificate was not due to the fault of the candidate and it was due to the fact that the authorities belatedly issued the said certificate. In this regard, paras 7 and 20 of the said judgment are extracted hereunder:

"7.There can be no controversy that the instructions to candidates and the brochure bind the candidates and the Service Commission, according to which, the candidates are bound to produce all the necessary documents / certificates along with the application. In general, the application shall be rejected for non-production of such certificates / documents. But, in our considered opinion, an exception can be carved out to the same. At this juncture, it would be worthwhile to clarify that all certificates, which are required to be produced along with application, cannot be treated equally. There are some certificates, like certificates relating to the basic qualification etc., which are essential, without which the applications cannot be entertained at all. On the other hand, there are certain other certificates, like Community Certificate, certificates relating to special consideration, like Sports Certificates, NCC, NSS Certificates etc., which are not essential for entertaining the application of the candidates. So, there can be no controversy that non-production of the former kind of certificates within the cut off date, shall be a ground to reject the application summarily, as mentioned in the instructions to the candidates and information brochure, because, they relate to the essential qualifications for making application. To put it otherwise, unless the Service Commission is satisfied about the eligibility criteria based on the said certificates, it cannot entertain the applications, and therefore, the applications in such an event are to be necessarily rejected.

20.It is true that the first respondent did not produce the Community Certificate before the provisional list of selected candidates was finalized. On this score, in normal course, applying the principles stated above, this Court would have held that the claim of the first respondent for consideration under the reserved quota for Scheduled Tribe should be rejected. But, we do not propose to do so, for the simple reason, as we have elaborately narrated above that the first respondent cannot be blamed for the belated issuance of Community Certificate. As we have already stated, the request of the first respondent for issuance of Community Certificate was pending before the Revenue Divisional Officer for more than a decade. It is only in these special and peculiar circumstances, we are inclined to sustain the order of the learned single Judge."

46.In our view, both the judgments relied on by the learned Senior counsel for the respondent TNPSC are of no use. Those cases are not related to violation of instructions as to the writing of examinations, while the judgments cited by the learned Senior counsel for the appellants are directly on the point.

47. After reserving the orders, at the time of drafting the judgment, we noticed that the candidates selected for Group-I Services of the Tamil Nadu Government for the year 2000-2001 who are respondents and who have not chosen to appear before the learned single Judge, no proper service has been effected and even the substituted service ordered was carried out improperly in the sense, no names of the respondents have been published, by the order dated 21.2.2010, we have directed the learned counsel for the appellant to effect proper substituted service. Accordingly, paper publication has been effected in 'Indian Express' dated 23.2.2011, with the names of all the party respondents. Proof of service has been filed on behalf of the appellants. However, in spite of the same, the party respondents neither appeared in person nor through the counsel.

48. Our discussion would lead to the following conclusions:

i) The selection to the high brass Group-I services should have been made in a transparent and unbiased manner by the TNPSC, without giving scope or room for anybody to raise their little finger against such selection.

ii) TNPSC should have rejected the answer scripts, which are in violation of the instructions to the candidates and other criterion fixed by the TNPSC itself.

Iii) What made the TNPSC to entertain and value even the answer scripts which are in total violation of the conditions prescribed by the TNPSC has not been explained by TNPSC, which would drive us to arrive at one and only irresistible conclusion that everything is not well with the selection, compelling our interference into the same, to set right an illegality committed against genuine candidates.

iv) We are quite aware that by now most of the selected candidates have put in a considerable length of service. But, that does not mean that an illegally and improperly appointed candidates should be allowed to continue with their services at the cost of the genuine candidates, that too when their such illegal appointments were questioned from the beginning. Therefore, the illegally appointed candidates cannot claim any equity. In fact, as has already been pointed out by us supra, none of the selected candidates barring respondent Nos.50, 52 and 57 have appeared before us, in spite of substituted service. This does not mean that only because they have not appeared before the court, we are setting aside the selection of some of them. But, we are constrained and compelled to set aside the selections of some of them, only because they have indulged in malpractices and grossly violated the instructions to the candidates, on which ground itself, their answer sheets should have been thrown out of consideration by the TNPSC itself.

v) It has been established before us by the appellants that had not the answer sheets of the candidates who have indulged in malpractices and grossly violated the instructions to the candidates, were evaluated, these appellants would have easily got through the selection procedure. This aspect has not been denied on the part of the TNPSC also.

vi) Though the appellants have submitted before us the calculation statements as to who many marks they should have been awarded, we are not going into that aspect since it is for the expert body to consider. However, we direct the TNPSC to consider their calculation statement also while revaluating their answer sheets.

48.For all the aforesaid reasons, the judgment of the learned single Judge is set aside and barring the eight respondents namely, S.Visakan, C.Shyamaladevi, R.Pandiarajan, K.Kingslin, K.Prabhakar, D.Padmavathi, M.Jayaraman and K.Varadharajan (R-11, 31, 30, 33, 38, 44, 54 and 91 in W.A.No.1063 of 2009) the selection and appointment of all the other 83 respondents are set aside for having indulged in malpractices and for grossly violating the instructions to the candidates, as has been pointed out by us supra. It has been established before us by the appellants that had the answer sheets of the candidates who have indulged in malpractices and indulged in gross violation of the instructions to the candidates, were excluded, these appellants would have got through the selection. Therefore, the Tamil Nadu Public Service Commission is directed to revalue the answer sheets of only the candidates who have not indulged in violation of any of the instructions and by excluding the candidates who committed such gross violations and errors and prepare the merit list afresh and go on with their appointment. But, since the appellants have not put in any service, and taking into consideration the duties and responsibilities attached to the posts to which they have to be appointed, we are not directing the Government to grant them the seniority. This should be read only as that the appellants should be appointed, according to their merit, after re-valuating their answer sheets, but they should be placed below all the serving candidates (of course, debarring the selection of illegally appointed candidates as is directed in this judgment), as on date, in the respective cadres. The entire process shall be completed within six weeks from the date of receipt of a copy of this judgment, keeping in mind the observations made by us in this judgment.

The writ appeals are allowed accordingly. No costs. Consequently, connected miscellaneous petition is closed.

(E.D.R., J.) (D.H.P., J.)

TK/Rao

Note to office:

Registry is directed to return all the original documents viz.

Answer scripts to the learned standing counsel for TNPSC,

under proper acknowledgement.

To

The Secretary

Tamil Nadu Public Service Commission

Government Estate,

Chennai